Farrell v. Johnson & Johnson , 184 Conn. App. 685 ( 2018 )

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MARY BETH FARRELL ET AL. v. JOHNSON
AND JOHNSON ET AL.
(AC 39472)
Lavine, Keller and Bishop, Js.
Syllabus
The plaintiffs, M and V, sought to recover damages from the defendants,
various medical providers, for, inter alia, innocent misrepresentation in
connection with a surgery performed by the defendant surgeon, H, on
M in which H implanted a transvaginal mesh product in M for the purpose
of alleviating pain. M experienced pain after the surgery and despite
several procedures to treat the pain and remove the product, M contin-
ued to experience pain and was eventually diagnosed with nerve damage
from the procedure. The plaintiffs thereafter commenced the present
action, alleging, inter alia, innocent misrepresentation. Prior to trial,
several defendants withdrew from the case, leaving only H and G Co.
as defendants. The trial court directed a verdict in favor of the defendants
on the plaintiffs’ innocent misrepresentation claim. Subsequently, the
jury returned a verdict in favor of the defendants on the remaining
counts. From the judgment rendered thereon, the plaintiffs appealed to
this court. Held:
1. The trial court did not abuse its discretion in permitting reference to
the former defendants and determining that the plaintiffs’ counsel had
opened the door to those references; the plaintiffs’ claim that reference
to the former defendants was extremely prejudicial and served to
improperly inform the jury that the plaintiffs received money from a
former defendant was unavailing, as the questions that the defendants’
counsel asked did not seek to elicit any details about the circumstances
regarding the removal of the other parties, did not mention a settlement,
and did not state an amount of damages that the plaintiffs may have
received from the former defendants, and the court allowed the defen-
dants’ counsel to give context to the questions that the plaintiffs’ counsel
had asked regarding the fee arrangement.
2. The trial court did not abuse its discretion in excluding from evidence
two journal articles that discussed the experimental and risky nature
of transvaginal mesh products, that court having properly determined
that the articles were inadmissible hearsay and did not fall within a
hearsay exception; although the plaintiffs claimed that portions of the
journal articles were admissible to establish that H knew or should have
known of the experimental and risky nature of the product, and that
the articles were therefore being offered to prove notice, the trial court
properly determined that the portions of the articles that the plaintiffs
sought to admit were being offered to prove the facts asserted within
them, as the crux of the plaintiffs’ claim was that H knew or should
have known of the experimental and risky nature of transvaginal mesh
products and the contents of the articles asserted precisely that claim,
and the plaintiff could not establish that H knew or should have known
of the experimental and risky nature of the products without offering
the contents of the articles for their truth.
3. The trial court properly directed a verdict in favor of the defendants on
the plaintiffs’ claim for innocent misrepresentation; innocent misrepre-
sentation claims primarily apply to business transactions, typically
between a buyer and seller, and concern principles of warranty, the
plaintiffs and the defendants in this case were not parties to a commercial
transaction, as the plaintiffs did not allege breach of warranty claims
against the defendants or that the defendants received some benefit as
a result of M’s reliance on H’s alleged misrepresentation, and although
case law has acknowledged that claims for innocent misrepresentation
are not limited to contracts for the sale of goods, it was unclear whether
such claims are applicable to cases such as this, where the plaintiffs
were claiming a lack of informed consent and were not involved in a
commercial transaction, and the Restatement suggests that there must
be a form of business transaction involved when making a claim for
innocent misrepresentation.
4. The plaintiffs could not prevail on their claim that the trial court improperly
declined to instruct the jury on the concept of misrepresentation due
to H’s lack of sufficient knowledge in accordance with their request to
charge; the court’s charge sufficiently conveyed the substance of the
plaintiffs’ requested charge, even though the court did not use the precise
language requested by the plaintiffs, and, thus, the substance of the
requested instructions was fairly and substantially included in the court’s
jury charge, as the court instructed that if H did not disclose all the
information he knew about the product and conveyed a false impression,
on which the plaintiffs relied to their detriment, then the jury could
hold the defendants liable for negligent or intentional misrepresentation.
Argued April 16—officially released September 18, 2018
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligent misrepresentation, and for
other relief, brought to the Superior Court in the judicial
district of Waterbury and tried to the jury before the
court, Zemetis, J.; thereafter, the court directed a ver-
dict in favor of the defendants on the plaintiffs’ innocent
misrepresentation claim; subsequently, the jury
returned a verdict in favor of the defendant Brian J.
Hines et al. on the remaining counts; thereafter, the
trial court rendered judgment thereon; subsequently,
the court denied the plaintiffs’ motion to set aside the
verdict, and the plaintiffs appealed to this court.
Affirmed.
Brenden P. Leydon, with whom, on the brief, was
Jacqueline E. Fusco, for the appellants (plaintiffs).
David J. Robertson, with whom, on the brief, were
Madonna A. Sacco, Heidi M. Cilano, Nancy M. Marini,
and Christopher H. Blau, for the appellees
(defendants).
Opinion
BISHOP, J. The plaintiffs, Mary Beth Farrell and Vin-
cent Farrell,1 appeal from the judgment of the trial court,
rendered following a jury trial, in favor of the defen-
dants Brian J. Hines, M.D., and Urogynecology and Pel-
vic Surgery, LLC (Urogynecology).2 On appeal, the
plaintiffs claim that the court (1) abused its discretion
by allowing the defendants to refer during trial to prior
defendants, the claims against whom had been with-
drawn; (2) abused its discretion by excluding from evi-
dence as hearsay two journal articles; (3) improperly
directed a verdict in favor of the defendants on the
plaintiffs’ claim of innocent misrepresentation; and (4)
improperly failed to instruct the jury on the concept
of misrepresentation due to Hines’ lack of sufficient
knowledge.3 We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
consideration of this appeal. At some point in 2007,
Mary Beth’s gynecologist diagnosed her with pelvic
organ prolapse.4 As her condition worsened, her gyne-
cologist recommended that she see Hines, a surgeon,
with whom she consulted in late October, 2008. Hines
explained that implanting a mesh product into Mary
Beth would be the best surgery to treat her condition.
Mary Beth agreed to the surgery, and Hines performed
the procedure on November 19, 2008.
Approximately four days after Mary Beth had
returned home from the surgery, she experienced
excessive bleeding and abdominal pain. Hines initially
diagnosed her with two large pelvic hematomas. Mary
Beth continued to follow up with Hines; however, she
continued experiencing pain. In February, 2009, Mary
Beth underwent another surgery during which Hines
attempted to remove the mesh product that he had
implanted in her. Hines removed as much of the mesh
as possible; however, some of the mesh could not be
removed because it was embedded in tissue. After a
second surgery to remove the mesh in the summer of
2009, Mary Beth still experienced pain and was diag-
nosed with damage to the pudendal and obturator
nerves.
Mary Beth underwent several additional procedures,
such as nerve blocks and mesh removal, but these pro-
cedures did not eliminate the pain. The pain that she
experienced eventually caused her to resign her posi-
tion as a teacher so she could focus on her health.
At the time of trial in January, 2016, Mary Beth was
considering additional surgery, which she described
as ‘‘major.’’
The plaintiffs served their original complaint on
November 15, 2011. The plaintiffs filed the operative,
third amended complaint on December 4, 2015, alleging
the following claims against the defendants: (1) lack of
informed consent; (2) innocent misrepresentation; (3)
negligent misrepresentation; (4) intentional misrepre-
sentation; and (5) loss of consortium.
The plaintiffs’ case was tried to a jury in January,
2016. On January 19, 2016, the court directed a verdict
in favor of the defendants on the plaintiffs’ innocent
misrepresentation claim. On January 20, 2016, the jury
returned a verdict for the defendants on the remaining
counts, and the court entered judgment on July 13, 2016.
The plaintiffs’ motion to reargue was denied and this
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
I
The plaintiffs’ first claim is that the court abused its
discretion by allowing the defendants to refer to parties
that had been removed from the case. The plaintiffs
argue that reference to the former defendants was
‘‘extremely prejudicial and served solely to seek to
improperly inform the jury [that the] [p]laintiff[s]
received money from a former defendant.’’ In response,
the defendants argue that the plaintiffs opened the door
to the admission of this evidence and, alternatively, that
any error was harmless.
The following additional facts and procedural history
are relevant to the resolution of this claim. The plaintiffs
commenced this action against several entities, in addi-
tion to Hines and Urogynecology, alleging products lia-
bility claims and violations of the Connecticut Unfair
Trade Practices Act. See footnote 2 of this opinion.
Before trial commenced, the plaintiffs withdrew their
claims against all defendants except Hines and Urogy-
necology. Prior to the start of evidence, the plaintiffs
filed a motion in limine in which they sought to exclude
from evidence any testimony regarding the resolution
of the claims against the former defendants. The court
granted the motion and, prior to the start of evidence,
instructed the jury not to consider the absence of the
former defendants.5 During the direct examination of
Mary Beth, the following exchange occurred:
‘‘[The Plaintiffs’ Counsel]: [Mary Beth], do you have
an agreement with my firm for the attorney’s fees in
this case?
‘‘[The Witness]: Yes, we do.
‘‘[The Plaintiffs’ Counsel]: What is that agreement?
‘‘[The Witness]: To pay you a third of any fees that
occurred in the case.
‘‘[The Plaintiffs’ Counsel]: One third of any recovery?
‘‘[The Witness]: Yes. One third of any recovery that
we receive.’’
Subsequently, on cross-examination, the following
exchange occurred:
‘‘[The Defendants’ Counsel]: You’re paying your attor-
neys one third of any recovery you receive from any
defendant, correct?
‘‘[The Witness]: Correct.
‘‘[The Defendants’ Counsel]: That would include any
prior defendants, correct?
‘‘[The Plaintiffs’ Counsel]: Objection. Relevance,
your Honor?
‘‘The Court: No. You’ve managed to open the door
with regard to this. No further evidence will be received
on that particular point. You may inquire.
‘‘[The Defendants’ Counsel]: I can ask my last
question?
‘‘The Court: You can ask.
‘‘[The Defendants’ Counsel]: And that is one third
of any recovery that you receive from any defendant,
whether it be Stamford Hospital, Ethicon, Johnson &
Johnson?
‘‘[The Plaintiffs’ Counsel]: Objection. Your Honor just
said no further evidence on that subject.
‘‘The Court: . . . I’m going to allow that question.
There will be no evidence as to whether the previous
defendants, who are now removed from the case, have
been removed from the case for any reason at all other
than that they are no longer parties to the case, whether
there were settlements, what the amount, if any, or
whether there were other reasons that they were
removed from the case, whether they be legal or tactical
or otherwise is not for this jury. As we started, [the
former defendants] were here when we picked this jury.
So [the jury is] well aware other parties were once
participants in this case, and they are no longer partici-
pants in this case. And the reason and the nature of
their exit is none of [the jury’s] concern. We are only
concerned with the case that we have at hand.’’
At the close of evidence, the plaintiffs requested that
the court again issue the instruction that it issued at
the beginning of the case, in which it instructed the
jury not to consider the absence of the former defen-
dants. The court denied this request.
General Statutes § 52-216a provides in relevant part:
‘‘An agreement with any tortfeasor not to bring legal
action or a release of a tortfeasor in any cause of action
shall not be read to a jury or in any other way introduced
in evidence by either party at any time during the trial
of the cause of action against any other joint tortfeasors,
nor shall any other agreement not to sue or release of
claim among any plaintiffs or defendants in the action
be read or in any other way introduced to a jury.’’ ‘‘It
is readily apparent from a common sense reading of
§ 52-216a that its legislative objective was to prohibit
in a trial to a jury [the jury’s] knowledge of any
agreement or release involving a tortfeasor at any time
during the trial of the cause of action . . . against
another tortfeasor.’’ (Internal quotation marks omitted.)
Peck v. Jacquemin, 196 Conn. 53, 58–59, 491 A.2d
1043 (1985).
‘‘Generally, a party who delves into a particular sub-
ject during the examination of a witness cannot object
if the opposing party later questions the witness on the
same subject. . . . The party who initiates discussion
on the issue is said to have opened the door to rebuttal
by the opposing party. Even though the rebuttal evi-
dence would ordinarily be inadmissible on other
grounds, the court may, in its discretion, allow it where
the party initiating the inquiry has made unfair use of
the evidence. . . . This rule operates to prevent a
[party] from successfully excluding inadmissible . . .
evidence and then selectively introducing pieces of this
evidence for his own advantage, without allowing the
[other party] to place the evidence in its proper context.
. . . The doctrine of opening the door cannot, of
course, be subverted into a rule for injection of preju-
dice. . . . The trial court must carefully consider
whether the circumstances of the case warrant further
inquiry into the subject matter, and should permit it only
to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original
evidence. . . . Thus, in making this determination, the
trial court should balance the harm to [one party] in
restricting the inquiry with the prejudice suffered by
the [other party] in allowing the rebuttal. . . . We
review for [an] abuse of discretion the trial court’s deter-
mination that a party has opened the door to otherwise
inadmissible rebuttal evidence.’’ (Citations omitted;
internal quotation marks omitted.) State v. Brown, 309
Conn. 469, 479–80, 72 A.3d 48 (2013).
As previously set forth, the plaintiffs’ counsel asked
Mary Beth about the plaintiffs’ fee agreement with coun-
sel. On cross-examination, the defendants’ counsel elic-
ited more details about the fee agreement; specifically,
whether it applied to the former defendants. As the
court noted, the plaintiffs’ counsel had opened the door
to this line of questioning. The questions that the defen-
dants’ counsel asked did not seek to elicit any details
about the circumstances regarding the removal of the
other parties, did not mention a settlement, and did not
state an amount of damages that the plaintiffs may have
received from the former defendants. Instead, the court
allowed the defendants’ counsel to give context to the
questions that the plaintiffs’ counsel asked regarding
the fee agreement. Therefore, the court did not abuse
its discretion by determining that the plaintiffs’ counsel
had opened the door and permitting reference to the
former defendants.6
II
The plaintiff’s next claim on appeal is that the court
abused its discretion by excluding from evidence two
journal articles that discussed the experimental and
risky nature of transvaginal mesh products. The plain-
tiffs argue that the journal articles were admissible to
show notice—i.e., that Hines knew or should have
known of the experimental and risky nature of transva-
ginal mesh products—and, therefore, were not hearsay
because they were not being offered to prove the truth
of the matters asserted therein. The defendants respond
that the court properly excluded the articles because
the experimental and risky nature of the mesh products
was exactly what the contents of the articles discussed.
We agree with the defendants.
The following additional facts and procedural history
are relevant to this claim. The plaintiffs attempted to
admit into evidence two journal articles: (1) American
College of Obstetricians and Gynecologists Practice
Bulletin 79 Re: Pelvic Organ Prolapse, 79 Obstetrics
and Gynecology (Feb. 2007, Vol. 109, No. 2, pt.1), p.
468 (ACOG Bulletin), and (2) Donald Ostergard, Les-
sons from the Past: Directions for the Future, Interna-
tional Urogynecology Journal 18:591–598 (2007)
(Ostergard article). The defendants objected to the
admission of these articles on hearsay grounds.
The portion of the ACOG Bulletin that the plaintiffs
sought to admit provided: ‘‘Given the limited data and
frequent changes in the marketed products (particularly
with regard to type of mesh material itself, which is
most closely associated with several of the postopera-
tive risks, especially mesh erosion), the procedures
should be considered experimental and patients should
consent to surgery with that understanding.’’ In addi-
tion, there were three portions of the Ostergard article
that the plaintiffs sought to admit, specifically: (1) ‘‘a
physician can inform the patient of its experimental
nature.’’; (2) ‘‘[t]here is a need for more information
with specific graft materials to clarify success and
adverse event rates’’; and (3) ‘‘[w]ithout an adequate
evidence base, practitioners cannot determine whether
an innovative technique is the most safe and effective
method for treating a patient.’’ The plaintiffs argued
that these portions of the articles established that Hines
knew or should have known of the experimental and
risky nature of the mesh products, and that the articles
were therefore being offered to prove notice and not
to prove the truth of the matters asserted therein.
The court sustained the defendants’ objection to the
admission of these articles. In doing so, the court stated
that the articles are ‘‘being offered on the issue of notice
and, therefore . . . they are not being offered for the
truth of the matter contained. That’s an argument I
don’t understand in this particular case. Whether these
articles exist[ed] prior to the date of [Mary Beth’s] sur-
gery is not the issue in this case. The issues in the case
are the adequacy and appropriateness of the explana-
tion of risk, benefit and alternatives that [Hines] gave
to [Mary Beth] on the various dates she went to see
him so she could give informed consent to this surgery.
The existence of these articles doesn’t bear on that.
‘‘So the problem I have is, I think that these are
hearsay documents. . . . And the fact they’re being
described as being offered for notice, I think that [the
defendants’] most recent brief is exactly on point with
my thinking; that is, that these are actually being offered
for the truth of the matter contained.’’
The court continued that it thought that the plaintiffs
‘‘want[ed] the truth of the matter contained in these
articles to be offered to the jury. The fact a medical
controversy exists, the fact that in these various
authors’ opinions inadequate study has been done, that
physicians have an obligation to advise their patients
that inadequate study has been done, that there’s not
a scientific basis for the use of this mesh product and
implantation of this product into patients absent such
scientific basis and study. I’m understanding that’s the
thrust of the case, but that’s the truth of the matter
contained in each of these three articles. That’s why I
think they are hearsay.’’
We first set forth our standard of review for eviden-
tiary issues. ‘‘When presented with an evidentiary issue
. . . our standard of review depends on the specific
nature of the claim presented. . . . Thus, [t]o the
extent a trial court’s admission of evidence is based on
an interpretation of the [law], our standard of review is
plenary. For example, whether a challenged statement
properly may be classified as hearsay and whether a
hearsay exception properly is identified are legal ques-
tions demanding plenary review. . . .
‘‘A trial court’s decision to admit evidence, if prem-
ised on a correct view of the law, however, calls for
the abuse of discretion standard of review. . . . In
other words, only after a trial court has made a legal
determination that a particular statement is or is not
hearsay, or is subject to a hearsay exception, is it vested
with the discretion to admit or to bar the evidence based
upon relevancy, prejudice, or other legally appropriate
grounds related to the rule of evidence under which
admission is being sought. . . . A paradigmatic exam-
ple of this distinction would be a trial court’s conclusion
that a hearsay statement bears the requisite indicia of
trustworthiness and reliability necessary for admission
under the residual exception to the hearsay rule, which
would be reviewed for an abuse of discretion. . . . By
contrast, the question of whether the trial court prop-
erly could have admitted that statement under the resid-
ual exception if the admission of that type of statement
expressly was barred under another hearsay exception
would present a question of law over which the appel-
late courts exercise plenary review.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Midland Funding, LLC v. Mitchell-James, 163 Conn.
App. 648, 653–54, 137 A.3d 1 (2016).
‘‘The hearsay rule forbids evidence of out-of-court
assertions to prove the facts asserted in them. If the
statement is not an assertion or is not offered to prove
the facts asserted, it is not hearsay. . . . This exclusion
from hearsay includes utterances admitted to show
their effect on the hearer.’’ (Internal quotation marks
omitted.) State v. Carpenter, 275 Conn. 785, 837–38,
882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S.
Ct. 1578, 164 L. Ed. 2d 309 (2006). ‘‘The proffering party
bears the burden of establishing the relevance of the
offered testimony. Unless a proper foundation is estab-
lished, the evidence is irrelevant.’’ (Internal quotation
marks omitted.) Id., 838. ‘‘Statements of others that
show the effect on the hearer or reader are not hearsay
on issues such as notice, intent, reasonableness or good
faith on the part of the hearer or reader. Before being
admitted for such a purpose, the state of mind of the
hearer or reader must be shown to be relevant to a
material issue in the case.’’ C. Tait & E. Prescott, Con-
necticut Evidence (5th Ed., 2014) § 8.8.1, p. 518. ‘‘A
statement is not hearsay if it is offered to prove notice
to the hearer.’’ Id., 519; see also Rogers v. Board of
Education, 252 Conn. 753, 766–67, 749 A.2d 1173 (2000).
In the present case, the court properly determined
that the portions of the ACOG Bulletin and the Osterg-
ard article that the plaintiffs sought to admit were being
offered to prove the facts asserted within them. The
crux of the plaintiffs’ claim was that Hines knew or
should have known of the experimental and risky nature
of transvaginal mesh products and, therefore, he should
have so informed Mary Beth. The contents of the ACOG
Bulletin and the Ostergard article asserted precisely
that—the risky and experimental nature of transvaginal
mesh products, and the need for physicians to explain
the risks of implanting such devices in patients. The
plaintiffs simply could not establish that Hines knew
or should have known of the experimental and risky
nature of the products without offering the contents of
the articles for their truth. The court properly deter-
mined that the articles were inadmissible hearsay and
did not fall within a hearsay exception and, accordingly,
did not abuse its discretion in excluding the articles
from evidence.7
III
The plaintiffs’ third claim on appeal is that the court
improperly directed a verdict in favor of the defendants
and refused to instruct the jury on their claim of inno-
cent misrepresentation. The plaintiffs argue that the
court erroneously concluded that innocent misrepre-
sentation claims are not applicable in personal injury
actions.8 The defendants respond that claims of inno-
cent misrepresentation are based on commercial rela-
tionships between the parties and, because the plaintiffs
did not allege products liability claims against Hines or
Urogynecology, the court properly directed a verdict
in their favor. We agree with the defendants.
The following additional facts and procedural history
are relevant to our resolution of this issue. In the opera-
tive complaint, the plaintiffs alleged against the defen-
dants, inter alia, counts of innocent misrepresentation,
negligent misrepresentation, and intentional misrepre-
sentation. In court on January 15, 2016, the defendants
argued their motion for judgment and directed verdict.
The defendants’ counsel argued, inter alia, that ‘‘I will
be candid with the [c]ourt and everyone, I don’t know
what an innocent misrepresentation claim is. I . . .
don’t even really understand how you can innocently
misrepresent something.’’ During this argument, the
court stated that ‘‘I have been unable to find any case
law that would indicate that this is a doctrine that’s
applicable to personal injury cases. The only cases I’ve
been able to find deal with nonpersonal injury cases,
a sinking house, a sale of various products, boundary
line disputes, that sort of thing, not anything to do with
personal injuries. I . . . may be missing them, but I
was unable to find any . . . .’’
The defendants also filed with the court a memoran-
dum of law in support of their motion for judgment/
directed verdict asserting that the plaintiffs could not
make a claim for innocent misrepresentation in a per-
sonal injury action, and argued the following: (1) there
can be no claim for innocent misrepresentation for per-
sonal injury; (2) cases cited by the plaintiffs in their
request to charge do not support a theory for innocent
misrepresentation in personal injury actions; and (3) the
plaintiffs cannot request economic and noneconomic
damages for innocent misrepresentation. The plaintiffs
did not produce any authority to establish that claims of
innocent misrepresentation are applicable in personal
injury cases. Thus, the court granted the defendants’
motion for judgment and directed verdict on the plain-
tiffs’ claim of innocent misrepresentation.
‘‘Whether the evidence presented by the plaintiff was
sufficient to withstand a motion for a directed verdict
is a question of law, over which our review is plenary.
. . . Directed verdicts are not favored. . . . A trial
court should direct a verdict only when a jury could
not reasonably and legally have reached any other con-
clusion. . . . In reviewing the trial court’s decision to
direct a verdict in favor of a defendant we must consider
the evidence in the light most favorable to the plaintiff.
. . . Although it is the jury’s right to draw logical deduc-
tions and make reasonable inferences from the facts
proven . . . it may not resort to mere conjecture and
speculation. . . . A directed verdict is justified if . . .
the evidence is so weak that it would be proper for the
court to set aside a verdict rendered for the other party.’’
(Internal quotation marks omitted.) Demiraj v. Uljaj,
137 Conn. App. 800, 804, 50 A.3d 333 (2012).
‘‘This court has long recognized liability for innocent
misrepresentation. The elements of this cause of action
are (1) a representation of material fact, (2) made for
the purpose of inducing the purchase, (3) the represen-
tation is untrue, and (4) there is justifiable reliance
by the plaintiff on the representation [made] by the
defendant and (5) damages.’’ (Internal quotation marks
omitted.) Matyas v. Minck, 37 Conn. App. 321, 333, 655
A.2d 1155 (1995). ‘‘In Connecticut, a claim of innocent
misrepresentation . . . is based on principles of war-
ranty, and . . . is not confined to contracts for the sale
of goods. . . . A person is subject to liability for an
innocent misrepresentation if in a sale, rental or
exchange transaction with another, [he or she] makes
a representation of material fact for the purpose of
inducing another to act or to refrain from acting in
reliance upon it . . . even though it is not made fraudu-
lently or negligently. . . . We have held that an inno-
cent misrepresentation is actionable, even though there
[is] no allegation of fraud or bad faith, because it [is]
false and misleading, in analogy to the right of a vendee
to elect to retain goods which are not as warranted,
and to recover damages for the breach of warranty.
. . .’’ (Citations omitted; internal quotation marks omit-
ted.) Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d
68 (1997).
‘‘In Connecticut law, strict liability for innocent mis-
representation in the sale of goods is well established.’’
Johnson v. Healy, 176 Conn. 97, 101, 405 A.2d 54 (1978).
‘‘[L]iability in tort, even for misrepresentations which
are innocent, has come to be the emergent rule for
transactions that involve a commercial exchange.’’ Id.,
100–101. The tort of innocent misrepresentation, sepa-
rate and distinct from the tort of negligent misrepresen-
tation, is predicated on principles of warranty. See
Kramer v. Petisi, 285 Conn. 674, 686 n.10, 940 A.2d 800
(2008). Our case law has established that ‘‘liability for
innocent misrepresentation is not a novelty in this state,
that such liability is based on principles of warranty,
and that such warranty law is not confined to contracts
for the sale of goods.’’ Johnson v. Healy, supra, 102.
Section 552C of the Restatement (Second) of Torts
provides: ‘‘(1) One who, in a sale, rental or exchange
transaction with another, makes a misrepresentation
of a material fact for the purpose of inducing the other
to act or to refrain from acting in reliance upon it, is
subject to liability to the other for pecuniary loss caused
to him by his justifiable reliance upon the misrepresen-
tation, even though [the representation] is not made
fraudulently or negligently. (2) Damages recoverable
under the rule stated in this section are limited to the
difference between the value of what the other has
parted with and the value of what he has received in
the transaction.’’
On the basis of the stated authority, it is apparent
that innocent misrepresentation claims primarily apply
to business transactions, typically between a buyer and
seller, and that the theory is based on principles of
warranty.9 Additionally, secondary sources explain that
liability for an innocent misrepresentation is likely
when ‘‘the representer stands to gain by a misrepresen-
tation at the expense of the other party to the transac-
tion [who was] induced by the misrepresentation.’’ 2
Harper, James, & Gray on Torts (3d Ed. 2006) § 7.7 p.
494. In the present case, the plaintiffs and the defen-
dants are not parties to a commercial transaction. The
plaintiffs did not allege breach of warranty claims
against the defendants, nor did the plaintiffs allege that
the defendants received some benefit as a result of
Mary Beth’s reliance on Hines’ alleged misrepresenta-
tion. Moreover, it is not clear what the measure of
damages would be were the plaintiffs able to recover
on their innocent misrepresentation claim. See Johnson
v. Healy, supra, 176 Conn. 106 (‘‘[t]he proper test for
damages [is] the difference in value between the prop-
erty had it been as represented and the property as it
actually was’’); see also 3 Restatement (Second), Torts
§ 552C (2) (1976) (‘‘[d]amages recoverable under the
rule stated in this section are limited to the difference
between the value of what the other has parted with and
the value of what he has received in the transaction’’).
Although our decisional law has acknowledged that
claims for innocent misrepresentation are not limited
to contracts for the sale of goods; see, e.g., Johnson v.
Healy, supra, 176 Conn. 102; it is unclear whether such
claims are applicable to cases such as this, where the
plaintiffs are claiming a lack of informed consent and
are not involved in a commercial transaction. The
Restatement suggests that there must be a form of busi-
ness transaction involved when making a claim for inno-
cent misrepresentation.10 Accordingly, although we are
mindful that this specific issue has not been subjected
to appellate review in this context, we conclude that
the theory of innocent misrepresentation is not applica-
ble in the present case, and that the court properly
directed a verdict in favor of the defendants on this
claim.
IV
The plaintiffs’ final claim on appeal is that the court
improperly declined to instruct the jury on the concept
of misrepresentation11 due to Hines’ lack of sufficient
knowledge. The plaintiffs argue that, because their
request to charge was relevant to the issues in the case
and contained an accurate statement of the law, the
court had to issue the instruction. The defendants
respond that the issue is not preserved and, alterna-
tively, that the substance of the request was given to
the jury through the court’s charge. We agree that the
court’s charge adequately conveyed the substance of
the plaintiffs’ requested charge.
The following additional facts and procedural history
are relevant to this claim. On January 15, 2016, the
plaintiffs filed with the court a supplemental request
to charge. The plaintiffs requested that the court
instruct the jury that ‘‘[r]epresentations made by one
who is conscious that he has no sufficient basis of
information to justify them are actionable as representa-
tions made with positive knowledge of their falsity,
because in making them the speaker misrepresents not
only the external facts but also the extent of his own
information.’’ In an e-mail exchange between the court
and the parties, the court indicated that, although the
plaintiffs’ request was ‘‘not specifically adopted, [the
court] feel[s] the issues are adequately covered in [its]
draft [jury charge].’’ The plaintiffs did not take excep-
tion to the charge or otherwise object to the absence
of their requested instruction.
‘‘It is well settled . . . that a party may preserve for
appeal a claim that an instruction . . . was . . .
defective either by: (1) submitting a written request to
charge covering the matter; or (2) taking an exception
to the charge as given . . . . [T]he purpose of the [pres-
ervation requirement] is to alert the court to any claims
of error while there is still an opportunity for correction
in order to avoid the economic waste and increased
court congestion caused by unnecessary retrials. . . .
Thus, the essence of the preservation requirement is
that fair notice be given to the trial court of the party’s
view of the governing law and of any disagreement that
the party may have had with the charge actually given.’’
(Citations omitted; emphasis altered; footnote omitted;
internal quotation marks omitted.) Ulbrich v. Groth,
310 Conn. 375, 424–25, 78 A.3d 76 (2013). In the present
case, the plaintiffs submitted a written request to
charge, thereby giving the court fair notice of their view
of the governing law. Accordingly, the plaintiffs’ failure
to object or take exception to the charge as given does
not preclude our review of this claim. We therefore turn
to the merits of this claim.
‘‘The primary purpose of the charge to the jury is to
assist [it] in applying the law correctly to the facts which
[it] find[s] to be established. . . . [A] charge to the jury
is to be considered in its entirety, read as a whole, and
judged by its total effect rather than by its individual
component parts. . . . [T]he test of a court’s charge is
not whether it is as accurate upon legal principles as
the opinions of a court of last resort but whether it
fairly presents the case to the jury in such a way that
injustice is not done to either party under the estab-
lished rules of law. . . . Although [a] request to charge
which is relevant to the issues of [a] case and which
is an accurate statement of the law must be given . . .
a refusal to charge in the exact words of a request . . .
will not constitute error if the requested charge is given
in substance. . . . Thus, when the substance of the
requested instructions is fairly and substantially
included in the trial court’s jury charge, the trial court
may properly refuse to give such instructions.’’ (Internal
quotation marks omitted.) State v. Gonzalez, 137 Conn.
App. 696, 701, 49 A.3d 1025, cert. denied, 307 Conn. 920,
54 A.3d 563 (2012).
Regarding negligent misrepresentation, the court
instructed, inter alia, that ‘‘[o]ne whose business or
profession it is to give information upon which the
bodily security of others depends and who in his busi-
ness or professional capacity gives false information to
another, is subject to legal liability for bodily harm
caused by the action taken in reliance upon such infor-
mation by the recipient, if although believing the infor-
mation is accurate, he failed to exercise reasonable
care, to ascertain its accuracy, or in his choice of the
language in which it was given.’’
Additionally, when charging the jury regarding inten-
tional misrepresentation, the court stated: ‘‘In general,
a person who undertakes to speak, that person assumes
a duty to tell the whole truth and to make a full . . .
and fair disclosure as to the matters about which the
person assumes to speak. There is a duty to provide
accurate information once one undertakes to speak.
Under the law of fraudulent concealment . . . and sup-
pression, a duty to disclose may exist where one volun-
tarily undertakes to speak, but fails to prevent his or
her words from being misleading or conveys only partial
information. Thus . . . when a party makes a partial
disclosure then . . . the party then has the duty to tell
the whole truth. A party is under a duty to disclose in
order to prevent a partial statement of the facts from
being misleading or conveying a false impression. There
is no basis for making a distinction between an oral
half-truth and a written one, and when a party makes
a partial disclosure, the party then has a duty to tell
the whole truth.’’
In the case at hand, the court’s charge sufficiently
conveyed the substance of the plaintiffs’ requested
charge, even though the court did not use the precise
language that the plaintiffs requested. The substance
of the plaintiffs’ request, in summary, was that if Hines
knew he did not have a sufficient basis of information
for the representations he made to the plaintiffs at the
time he made them, it is the equivalent of Hines making
a knowing misrepresentation to the plaintiffs. As the
cited portions of the jury instructions show, the court
instructed the jury as such, albeit in different terms.
The court instructed that if Hines did not disclose all the
information he knew about the product and conveyed
a false impression, on which the plaintiffs relied to their
detriment, then the jury could hold the defendants liable
for negligent and/or intentional misrepresentation.
Accordingly, we conclude that the substance of the
requested instructions was fairly and substantially
included in the court’s jury charge and, therefore, that
it did not improperly decline to instruct the jury as the
plaintiffs had requested.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We refer to Mary Beth Farrell and Vincent Farrell collectively as the
plaintiffs and individually by first name.
2
The plaintiffs brought this action against the following defendants: John-
son & Johnson; Ethicon, Inc.; Ethicon Women’s Health and Urology, a Divi-
sion of Ethicon, Inc.; Gynecare, a Division of Ethicon, Inc.; American Medical
Systems, Inc.; Stamford Hospital System, Inc.; Hines; and Urogynecology.
On July 10, 2015, the plaintiffs withdrew their claims against American
Medical Systems. On January 6, 2016, the plaintiffs withdrew their claims
against Johnson & Johnson, Ethicon, Inc., Ethicon Women’s Health and
Urology, and Stamford Hospital. On January 11, 2016, the plaintiffs withdrew
their claim against Gynecare, a division of Ethicon, Inc. The remaining
defendants for trial were Hines and Urogynecology, and they are likewise
the only defendants on appeal. We refer to Hines and Urogynecology collec-
tively as the defendants and individually by name where appropriate.
3
The plaintiffs claimed also that the court abused its discretion by exclud-
ing the testimony of two patients whom Hines had treated. The plaintiffs
withdrew this claim at oral argument before this court.
4
According to the American College of Obstetricians and Gynecologists,
pelvic organ prolapse is defined as ‘‘a disorder in which one or more of the
pelvic organs drop from their normal position . . . .’’ American College of
Obstetricians and Gynecologists, ‘‘Surgery for Pelvic Organ Prolapse,’’ (last
modified December, 2013), available at https://www.acog.org/Patients/
FAQs/Surgery-for-Pelvic-Organ-Prolapse#what (last visited July 16, 2018).
5
The court’s instruction provided in relevant part: ‘‘At the time that some
of you or maybe all of you were selected to sit as jurors in the case,
the list of the defendants included Johnson & Johnson, Ethicon, Stamford
Hospital, as well as [Hines]. Now, Johnson & Johnson, Ethicon, and Stamford
Hospital are no longer defendants in the case. Therefore, the lawyers that
you saw in connection with those [defendants] . . . will not be here . . .
representing a party in the case. You will not be asked to decide any claims
of legal liability with respect to [the former defendants]. The fact that [the
former defendants] are no longer defendants must have no bearing on your
consideration of the claims which are to be tried. You should not guess or
speculate as to circumstances through which [the former defendants] were
removed from the case. Do not draw any inferences favorable or unfavorable
as to any party as a result of their removal from this case. Simply put it out
of your mind and do not even discuss it with each other. To the extent
necessary, I will deal with any legal issue arising out of their departure from
this case. You will simply decide the case that is presented to you. You will
not consider the absence of those parties from the case.’’
6
Even assuming, arguendo, that the court did abuse its discretion by
determining that the plaintiffs’ counsel opened the door to referencing the
former defendants, we conclude that such error was harmless. See Prentice
v. Dalco Electric, Inc., 280 Conn. 336, 358, 907 A.2d 1204 (2006) (‘‘[E]ven
when a trial court’s evidentiary ruling is deemed to be improper . . . we
[still] must determine whether that ruling was so harmful as to require a
new trial. . . . In other words, an evidentiary ruling will result in a new
trial only if the ruling was both wrong and harmful. . . . [T]he standard in
a civil case for determining whether an improper ruling was harmful is
whether the . . . ruling [likely] would [have] affect[ed] the result.’’ [Empha-
sis in original; internal quotation marks omitted.]), cert. denied, 549 U.S.
1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007). The court instructed the jury
prior to the start of evidence that the absence of the former defendants
was not to have any bearing on their decision and that it could not speculate
about why the former defendants had been removed. See footnote 4 of
this opinion. Additionally, after the plaintiffs’ counsel had objected to the
defendants’ counsel’s question regarding the fee agreement, the court again
instructed the jury that it was not to concern itself with the absence of the
former defendants. ‘‘[I]t is well established that, [i]n the absence of a showing
that the jury failed or declined to follow the court’s instructions, we presume
that it heeded them.’’ (Internal quotation marks omitted.) Hurley v. Heart
Physicians, P.C., 298 Conn. 371, 402, 3 A.3d 892 (2010). There has been no
showing that the jury failed or declined to follow the court’s instructions
not to speculate about or to consider the absence of the former defendants.
Therefore, even if we assume, arguendo, that the court abused its discretion,
any error was harmless.
7
Because we believe that the court did not abuse its discretion in excluding
the two journal articles in question, we need not reach the defendants’
alternate argument that the exclusion of the two articles, if erroneous, was
nevertheless harmless. In this regard, we note that the record reflects that
the plaintiffs were successful in admitting, through their medical expert,
other documentation regarding the mesh graft including: a brochure titled
‘‘Pelvic Organ Prolapse: Get the Facts, Be Informed’’; and a journal article
titled ‘‘Occurrence of Postoperative Hematomas After Prolapse Repair Using
a Mesh Augmentation System.’’
8
The plaintiffs also argue that it was ‘‘procedurally improper’’ for the
court to direct a verdict in favor of the defendants on their innocent misrepre-
sentation claim. Specifically, the plaintiffs argue that ‘‘[d]espite filing three
summary judgment motions, the [d]efendant[s] never presented a dispositive
motion claiming that innocent misrepresentation can never apply to a plain-
tiff who has suffered physical injuries in addition to economic loss. This
issue ended up being raised sua sponte and [the] [p]laintiffs were given less
than one day to come up with a case specifically allowing such a claim.
This was clearly procedurally improper.’’ We are not persuaded. A review of
the trial transcript reflects that the court heard argument on the defendants’
motion for judgment and directed verdict, during which the defendants
argued, inter alia, that ‘‘there has been no testimony, whatsoever, on any
misrepresentation that was made.’’ The defendants also filed a written memo-
randum of law in support of their motion for judgment and directed verdict
regarding the plaintiffs’ claim of innocent misrepresentation. The plaintiffs’
claim of a procedural impropriety, therefore, is without merit. We thus
address only whether the court’s directing a verdict was proper substan-
tively.
9
The facts of Johnson v. Healy, supra, 176 Conn. 97, are useful in detailing
a scenario in which innocent misrepresentation is applicable. The plaintiff
(buyer), inquired with the defendant (builder), about the quality of construc-
tion of a home that the builder had built. Id., 98. The builder explained that
the home was constructed using the best materials, that he himself had
built the home, and that nothing was wrong with the home’s construction.
Id., 98–99. The buyer reasonably relied on the builder’s representations,
which induced the buyer to purchase the home. Id., 99, 102–103. The home
then sustained damage because of its uneven settlement, which occurred
as a result of improper fill being placed on the lot on which the home was
built some time before the builder bought the lot. Id., 99. On the basis of
these facts, our Supreme Court determined that the builder could be held
liable for the damage to the home on a theory of innocent misrepresentation,
even though the builder had no actual or constructive knowledge of the
condition that caused the damage to the home. See id., 99, 102–103. The
court determined that the proper measure of damages was the difference
in value between the house as the builder represented and the house as it
actually was. Id., 106.
10
There is a caveat noted in Section 552C of the Restatement (Second)
of Torts, which provides: ‘‘The Institute expresses no opinion as to whether
there may be other types of business transactions, in addition to those of
sale, rental and exchange, in which strict liability may be imposed for
innocent misrepresentation under the conditions stated in this Section.’’
(Emphasis added.)
11
Because we have determined that innocent misrepresentation is not
applicable in the present case and that the court properly directed a verdict
on that claim, we need not consider whether the court improperly failed to
instruct the jury on the concept of innocent misrepresentation due to Hines’
lack of sufficient knowledge. The plaintiffs’ counsel conceded this point at
oral argument. Therefore, this section addresses only whether the court
properly instructed the jury on the concepts of negligent and intentional
misrepresentation due to Hines’ lack of sufficient knowledge.